The Board and the FRA Address COVID-19 Impacts

Both the Surface Transportation Board (STB or Board) and the Federal Railroad Administration (FRA) have taken certain steps to address impacts of the COVID-19 pandemic.  The Board announced that, starting on March 17, 2020, all filings and other submissions should be made electronically.  Until further notice, the Board will not be accepting paper filings or providing paper copies of any decisions or other materials.  STB Homepage,  The STB has also granted certain deadline extensions in proceedings where requested due to COVID-19 impacts.  E.g., Ass’n of Am. R.Rs.—Petition for Declaratory Order, FD 36369 (STB served March 19, 2020); Petition by the Nat’l R.R. Passenger Corp. (Amtrak) for Proceeding under 49 U.S.C. § 24903(c)(2), FD 36332 (STB served March 17, 2020). 

            On March 13, in response to the COVID-19 pandemic, the FRA activated the Emergency Relief Docket (ERD), FRA-2020-0002, which allows FRA to grant emergency waivers of its safety rules.  49 C.F.R. § 211.45.  The FRA has received and responded to various requests for relief from certain regulatory obligations in the ERD, some of which apply industry-wide.  On March 25, the FRA granted (with conditions) a request for relief jointly submitted by the Association of American Railroads (AAR), the American Short Line and Regional Railroad Association (ASLRRA), and the American Public Transportation Association (APTA).  See Letter from FRA to AAR, ASLRRA, and APTA, Request for Relief in FRA Emergency Docket FRA-2020-0002 related to Coronavirus Disease 2019 (COVID-19), Docket No. FRA-2020-0002 (March 25, 2020).  In general terms, the FRA in this letter temporarily suspended, subject to specific conditions, certain requirements related to inspection time intervals, operational tests and inspections of employees, certification criteria timelines, limits on use of quick tie-up procedures, intervals for locomotive maintenance and inspections, and specific mechanical requirements.  In order to utilize the waiver relief granted by FRA, railroads must document the basis on which they concluded that using the relief was necessary and must submit a weekly report to the FRA.  This relief applies to all railroads operating in the U.S. and expires on May 24, 2020 (60 days from the date of the letter).

On March 30, 2020, the FRA supplemented its March 25 letter by granting temporary relief from certain refresher/recurrent training requirements, subject to conditions.  See Letter from FRA to AAR, ASLRRA, and APTA, Request for Relief in FRA Emergency Docket FRA-2020-0002 related to Coronavirus Disease 2019 (COVID-19), Docket No. FRA-2020-0002 (March 30, 2020).

Also on March 30, the FRA issued a letter addressing AAR, ASLRRA, and APTA’s request that FRA temporarily waive certain alcohol and drug testing requirements.  See Letter from FRA to AAR, ASLRRA, and APTA, Request for Relief in FRA Emergency Docket FRA-2020-0002 related to Coronavirus Disease 2019 (COVID-19) and FRA Alcohol and Drug Testing, Docket No. FRA-2020-0002 (March 30, 2020).  FRA denied the request for waiver of the random drug testing requirements based on COVID-19 guidance issued by the Department of Transportation’s (DOT) Office of Drug and Alcohol Policy and Compliance (ODAPC).  The FRA explained, however, that certain of its regulations already “provide flexibility to a railroad that is unable to complete a random testing collection for COVID-19-related reasons.”  Id. at 3.  In this response, the FRA also denied the request to extend time-limit requirements for post-accident, reasonable suspicion, and reasonable cause testing.

The Board Finalizes Rule Excluding Demurrage Regulation from Certain Class Exemptions

            The Board adopted as final a rule proposed in October ensuring that, in movements occurring under certain class exemptions, the Board retains jurisdiction over demurrage.   Exclusion of Demurrage Regulation from Certain Class Exemptions, Ex Parte 760 (STB served Feb. 28, 2020).  In general terms, the rule amends the Board’s regulations governing exemptions for certain miscellaneous commodities and boxcar transportation to clarify that demurrage continues to be subject to Board regulation.  The rule also partly revokes the class exemption for the transportation of certain agricultural commodities so that the exemption will not apply to the regulation of demurrage.  Id. at 1-2.  This proceeding arose, in part, from testimony and comments the Board received in Oversight Hearing on Demurrage & Accessorial Charges, Ex Parte 754.

            With respect to the clarification concerning the miscellaneous commodities and boxcar transportation exemptions, the Board explained that these two exemptions “already effectively exclude the regulation of demurrage.”  Id. at 3.  Courts and the Board “have found that the language of these provisions effectively excludes demurrage from the miscellaneous commodities and boxcar transportation exemptions.”  Id.  The final rule “formalize[s] what has been established practice for many years.”  Id. at 4. 

            Unlike the two exemptions above, the agricultural commodities exemption previously did not contain language effectively excluding demurrage regulation from the exemption.  Id. at 3.  In this rulemaking, the Board found that “regulation of demurrage related to the non-intermodal rail transportation of agricultural commodities is necessary to carry out the [rail transportation policy (RTP)] of 49 U.S.C. § 10101.”  Id. at 2.  By excluding demurrage regulation from the exemption here, the final rule “make[s] the agricultural commodities exemption more consistent with the miscellaneous commodities and boxcar transportation exemptions.”  Id. at 3. 

Specifically, the rule adds the following language to 49 C.F.R. §§ 1039.10 (exemption of agricultural commodities except grain, soybeans, and sunflower seeds), 1039.11(a) (miscellaneous commodities exemptions) and 1039.14(d) (boxcar transportation exemptions and rules): “Consistent with the exemptions in [§ 1039.10, § 1039.11, and § 1039.14], this exemption shall not apply to the regulation of demurrage, except the regulation of demurrage related to transportation that is subject to § 1039.13” (which is intermodal transportation).  Id. at 18.

            The rule became effective on April 3, 2020.

The Ninth Circuit Finds that ICCTA Does Not Preempt Enforcement of Easement Agreement with an Indian Tribe

In Swinomish Indian Tribal Community v. BNSF Railway Company, 951 F.3d 1142 (9th Cir. 2020), the Ninth Circuit held that the Interstate Commerce Commission Termination Act (ICCTA) would not preempt the enforcement of an easement through an injunction limiting rail traffic moving over land of an Indian tribe.   

BNSF has an Easement Agreement and corresponding right-of-way over the Reservation of the Swinomish Indian Tribal Community (Tribe).  Id. at 1146.  The Tribe’s Reservation was established by the Treaty of Point Elliott of 1855 (Treaty), and the land is held in trust for the Tribe by the U.S.  Id.  The right-of-way was granted by the Department of the Interior under the Indian Right of Way Act of 1948.  The Easement Agreement limits BNSF to a daily maximum of one train in each direction on the line, with a maximum number of rail cars, unless the Tribe agrees otherwise in writing.  Id.  The Tribe sued BNSF for failing to abide by the terms of the Agreement.  Id.  The U.S. District Court for the Western District of Washington found that ICCTA would not preempt an injunction to enforce the Easement Agreement.  Id.  The Ninth Circuit granted interlocutory review of the district court’s order and affirmed it in this decision.

The Ninth Circuit began its analysis by explaining that ICCTA “expressly preempts a wide range of state and local regulation of rail activity.”  Id. at 1152 (internal quotation marks omitted) (emphasis in original).  However, there are three federal laws applicable to the Easement Agreement—federal common law, the Treaty, and the Indian Right of Way Act.  The Ninth Circuit analyzed the following two questions regarding the relationship between ICCTA and the other federal laws:  (1) “[T]o to the degree that there may be a conflict between the two statutes, did the ICCTA repeal the Indian Right of Way Act?” and (2) “[D]id the ICCTA abrogate treaty-based federal common law and the Treaty of Point Elliott, which allow tribes to exclude non-Indians from their reservations?”  Id. at 1155-56.  The court also stated that statutes concerning Indian law “are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.”  Id. (citations and internal quotation marks omitted). 

With respect to the first question posed, the Ninth Circuit concluded that ICCTA does not repeal the Indian Right of Way Act.  Id. at 1157.  The court identified several grounds for this conclusion.  First, the court reasoned that the right-of-way did not operate as a “regulation” “within the meaning of ICCTA.”  Id. at 1157-58.  The court further reasoned that enforcement of the Easement Agreement’s conditions does not “constitute an unreasonable interference with rail transportation such that it is impliedly preempted” by ICCTA.  Id. at 1158 (citations and internal quotation marks omitted).  The court also noted that nothing in ICCTA’s text or legislative history indicated that Congress intended ICCTA to repeal the Indian Right of Way Act or remedies thereunder.  Id.  The Ninth Circuit further stated that the Indian Right of Way Act is “a statutory mechanism by which the United States fulfills some of” its responsibilities towards Indian tribes.  Id. at 1159.  The court also noted that the Indian Right of Way Act applies to specific situations, whereas ICCTA is a more broadly applicable statute, and a general statute does not control a more specific one absent a clear intention to do so.  Id. at 1159-60.  The court concluded its analysis of the relationship between ICCTA and the Indian Right of Way Act by explaining that the two federal statutes are “easily reconcilable,” and therefore there is no repeal by implication.  Id. at 1160.

Regarding the second question, whether ICCTA abrogates Indians’ treaty-based rights to exclude non-Indians, the court found that ICCTA does not.  Courts “will not hold that Congress abrogated Indian treaty rights absent unambiguous language to that effect,” and here, “[t]here is no such abrogating language in” ICCTA.  Id.  

On March 30, BNSF filed a petition for panel rehearing or rehearing en banc.  Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., Docket Entry 65, No. 18-35704 (filed March 30, 2020).

The FRA Issues Intercity Passenger Rail Service Metrics and Minimum Standards NPRM

On March 31, the FRA issued a Notice of Proposed Rulemaking (NPRM) containing metrics and minimum standards for measuring the performance and service quality of intercity passenger rail service.  FRA, Metrics and Minimum Standards for Intercity Passenger Rail Service, Docket No. FRA-2019-0069, 85 Fed. Reg. 17,835 (March 31, 2020).  This NPRM was issued pursuant to Section 207 of the Passenger Rail Investment and Improvement Act of 2008, Public Law 110–432, 122 Stat. 4907 (PRIIA) and was developed jointly with Amtrak, as required by Section 207.

In 2009-2010, the FRA finalized a rule under Section 207 also containing metrics and standards for intercity passenger rail service.  That rulemaking was the subject of extensive litigation, and in 2019 the FRA and Amtrak once again began working on a proposed set of metrics and standards.  Id. at 17,836.

The metrics and standards in the 2020 NPRM are organized into the following categories: (1) on-time performance (OTP) and train delays, (2) customer service, (3) financial, and (4) public benefits.  Id.  First, OTP would be measured using the customer OTP metric, defined as “the percentage of all customers on an intercity passenger rail train who arrive at their detraining point within 15 minutes of their published scheduled arrival time, reported by train and by route.”  Id. at 17,837.  Under the proposed rule, the minimum standard for customer OTP would be 80 percent for any two consecutive quarters.   Id. at 17,838.  The NPRM proposes three metrics in relation to train delays: (a) total minutes of delay, (b) train delays per 10,000 train miles, and (c) average minutes late per customer.  Id. at 17,846-47.

The NPRM proposes the following six metrics related to customer service: (a) overall customer satisfaction, (b) Amtrak personnel, (c) information given by Amtrak, (d) on-board comfort, (e) on-board cleanliness, and (f) on-board food service.  Id. at 17,847.

The following three financial metrics are proposed: (a) cost recovery, which is “Amtrak’s adjusted operating revenue divided by Amtrak’s adjusted operating expense,” (b) avoidable operating costs covered by passenger revenue, and (c) fully allocated core operating costs covered by passenger revenue.  Id. 

Finally, the NPRM proposes four metrics in the public benefits category: (a) connectivity, which is “the percent of passengers connecting to and from other Amtrak routes,” (b) missed connections, (c) community access, and (d) service availability.  Id.

Comments on the proposed rule are due on June 1, 2020. 

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